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Potential $50M Med-Mal Retrial Starts

Expert witnesses will debate if obstetrician is responsible for baby born with brain damage, lawyers say

, Daily Report

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Tommy Malone, for the parents, said the doctor should have offered a C-section.
Tommy Malone, for the parents, said the doctor should have offered a C-section.

A potential $50 million medical malpractice trial opened Tuesday in Cobb County with attorneys describing for the jury a battle of expert witnesses who will debate if a baby born with severe brain damage could have escaped that fate had he been delivered sooner by cesarean section.

It is the second time the parties have laid out this case before Judge Kathryn Tanksley of Cobb County State Court. A 2011 effort ended in a mistrial, with jurors reportedly favoring the defendant hospital and hung on the defendant obstetrician. In that trial, the plaintiffs' counsel asked the jury for at least $50 million to cover the cost of a lifetime of care for the child.

On Tuesday, plaintiffs' attorney Tommy Malone told the jury in his opening statement, "This case is about Tucker Sutton. We call him Mighty Tucker."

He said the baby weighed 11 pounds when he was born in April 2008. He survived despite being trapped in the birth canal for 1 minute and 58 seconds. He was revived after 19 minutes without a heartbeat or a breath. He suffers from severe brain damage and paralysis that Malone told the jury could have been prevented if the obstetrician, Dr. Gregg Alan Bauer of Marietta OB-GYN, had responded to the baby's size and elevated heart rate by offering the parents a C-section.

"The failure to do a C-section is what it's all about," said Malone, who is trying the case with his son and partner Adam Malone of the Malone Law Office. Malone said their clients, Lori and Landon Sutton, were never offered the option of a C-section.

Malone spent much of his hourlong opening discussing fetal monitoring strips that he said showed the baby's distress through an elevated heart rate, and other indications that a C-section was needed: the baby's large size, the age of the mother (36), and meconium (bowel movement by the baby) in the amniotic fluid. Malone alleged that the doctor should have responded to those clues but suggested he did not because he was sleeping as he neared the end of a 24-hour on-call shift. Malone showed the jury a photograph of the on-call room where the doctor spent much of the night. The sign on the room said it was a doctor's sleep room.

"We're going to prove that Dr. Bauer should have paid more attention. We're going to prove that Dr. Bauer should have been more involved," Malone said. He suggested the doctor "spent far too much time" in the sleep room, and that the outcome for Tucker would have been different if a C-section had been offered.

Through his own expert witnesses, the doctor will present evidence to the contrary, Daniel Huff of Huff, Powell & Bailey told the jury. Huff is trying the case with Taylor Tribble of Huff Powell. Huff told the jury that Bauer has delivered more than 4,000 babies, was educated and trained at Emory University and saw no reason to intervene surgically in Tucker's delivery. Huff told the jury that he will present expert witnesses to show that Tucker's brain damage was caused by a fever and infection that his mother developed before he was born.

"C-sections are not risk-free. They carry with them their own complications, especially when infection is present like with this mom," Huff said.

The Suttons' birth plan called for a vaginal delivery. "You need a good medical reason to change the plan," Huff said. In Tucker's case, no such reason existed, Huff said.

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